TaxTMI 
TaxTMI 
2018 (6) TMI 1646
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....;s own case alongwith decision of different Benches of the Tribunal wherein identical issues have been considered by the ITAT and consistently the issue has been decided in assessee's favour relying on decisions of the different High Courts and also the Apex Court. Copies of the decisions referred to in the impugned order, it was submitted, are compiled and are available in the Paper Book filed. Reliance was placed upon these decisions. The list of cases indexed is extracted hereunder : 1 Skycell Communications Limited Vs. DCIT (251 ITR 53) (Mad.) 2 CIT vs. Bharti cellular and others (175 taxman 573) (Del. HC) 3 CIT vs. Bharti cellular (193 Taxman 97) (SC) 4 CIT v Vodafone South Ltd. (241 Taxman 497) (Ear.) 5 Appellant's own case (ITA No. 94-96/JP/2013 and 917/JP/2012 order dated July 24, 2015)(TJaipur) 6 Appellant's own case before Hon'ble Rajasthan High Court (87 tax.mann.com 295)(Raj.) 7 Appellant's own case (ITA No. 758-761/Bang/2014 order dated November 06, 2015) (T Bang) 8 M/s. Dishnet Wireless Limited vs. DCIT (ITA No. 320 to 329 / Mds / 2014, dated July 20, 2015) (Chennai) ....
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....TOs. The AO noticed that no TDS has been deducted by it from the roaming charges paid by the assessee. The AO held the assessee to be assessee in default u/s 201(1) r.w.s. 194 J of the Act as he was of the view that roaming is nothing but fees for technical services and since there was human intervention during the roaming process, TDS u/s 194J of the Act should have been deducted. 6.1 It is seen from the record that the assessee preferred an appeal against the order of the AO. The CIT(A) while deciding the appeals of the assessee for the assessment year 2005-06 directed the AO to take a fresh decision on the applicability of Section 194J to the payment made for national roaming charges paid by the assessee in the light of the observations of the Hon'ble Supreme Court in the case of M/s Bharti Cellulars Ltd. (193 Taxman 97). 6.2 The record shows that in compliance of the directions of the Hon'ble Supreme Court, the Department had sought the services of C-DOT, a Government of India undertaking after making certain enquiries. The C-DOT deputed Mr. Tanay Krishna and Mr. Ashok Mittal, technical experts for this purpose. The TDS officer recorded the statements of the above....
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....ra 5.3 of his order as under : 5.3 During the course of the appellate proceedings the appellant filed written submissions dt. 24.03.2017 and 22.06.2017 and claimed that the payments made by it for roaming facilities do not attract provisions of section 194J of the Act since they are not in the nature of payment, for technical services. In its support, the appellant relied upon various decisions including decisions on the issue in question in its own case as well as the following ones: 1. M/s Bharti Hexacom Ltd. vs ITO (TDS) (ITA No. 656/JP/2010)(ITAT, Jaipur); 2. M/s Idea Cellular Ltd. vs ITO (ITA No. 94 to 96/JP/2013 and 917JP2012)(ITAT, Jaipur); 3. M/s Hindustan Coca Cola Beverages Pvt. Ltd. and Others vs CIT(2017)(ITA No. 205/2005)(HC, Rajasthan) 4. M/s Idea Cellular Ltd. vs ACIT (ITA No. 648 to 65 l/Bang/2014)(ITAT, Bangalore); 5. CIT vs M/s Vodafone South Ltd. (241 Taxmann.com 496)(HC, Karnataka); 6. M/s Vodafone East Ltd. vs Addl. CIT(2015)(61 Taxrnann.com 263)(ITAT, Kolkota); 7. M/s Bharti Airtel Ltd. vs ITO (TDS) (67 Taxmann.com 223)(ITAT, Delhi); Accordingly, the appellant made the following s....
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....s automatic and do not require any human intervention. The term Interconnecting User Charges (IUC) also signifies charges for connecting two entities. The coordinate bench also considered the Hon'ble Supreme Court decision in the case of M/s Bharti Cellulars Ltd in the case of i-Gate Computer Systems Ltd and held that Data Link transfer does not require any human intervention and charges received or paid on account of this is not fees for technical services as envisaged in section 194J read with section 9(1) (vii) read with Explanation-2 of the Act Respectfully following above judicial precedents, we hold that the charges are not fees for rendering any technical services as envisaged in section 194J of the Act. " The above finding of fact was again reiterated by Hon'ble ITAT, Jaipur in appellant's own case in ITA-Nos. 94 to 96/JP/2013 as well as by Hon'ble ITAT Bangalore in appellant's own case in ITA Nos. 608 to 651/Bang/2014. This was also confirmed and upheld by Hon'ble Karnataka High in the case of CIT, TDS, Bangalore vs Vodafone South Ltd (2016) 72 Taxmann.com 347 in which their lordship held that - "Reading of the above order c....
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....he Act on payment of roaming charges to the OTOs and the appellant therefore can't be treated as an assessee in default." 8. On a careful reading of the impugned order wherein consistently there are orders of Co-ordinate Benches in similar set of facts in the case of the assessee itself, which we note, have not been distinguished either on facts or in law nor have been upset by any higher Forum. In these peculiar facts and circumstances, we find that departmental appeals are without any merit. The facts taken on record which have not been upset are that for installation/setting up/repairing/servicing/maintenance/capacity augmentation etc. human intervention is required, however after this process is complete, the interconnection between the operators is automatic and at that stage, no human intervention is required. These conclusions have been arrived after considering the Reports of the technical experts, their cross-examination etc. We note that Interconnecting User Charges (IUC) which signifies charges for connecting two entities. The Coordinate Benches have relied upon the order in the case of i-Gate Computer Systems Ltd where decision of the Apex Court in the case of M/....